Legal Threats vs. Legislative Expansion
By Christine Rasmussen
Rasmussen’s synthesis of the current conflict surrounding the Residential inclusionary Zoning Bylaws in Massachusetts, is based on reporting by Jennifer Smith for the CommonWealth Beacon.
Development at a Crossroads
Cambridge’s housing policy (Inclusionary Bylaw) and Governor Maura Healey’s goal of 220,000 affordable housing units by 2035 met with a new lasuit that calls both mandatory affordable housing set-asides (inclusionary zoning) unconstitutional.
The litigation could upend Inclusionary Bylaws, a decades old zoning provision requiring that when a developer meets a certain threshold of new units a percentage of the units must be made available to low- and moderate-income people and Governor Maura Healey’s goal to create 220.000 new housing units by 2035 by using existing and new tools. (We have an Inclusionary Bylaw in Stockbridge)
The Constitutional Challenge
At the center of the legal storm is Cambridge. A lawsuit filed in Land Court by local developer Patrick Barrett and the conservative Legal Pioneer Foundation argues that the city’s inclusionary zoning ordinance is unconstitutional at its core. Cambridge currently enforces one of the strictest requirements in the country, mandating a 20 percent affordability set-aside for new projects with 10 or more units.
The plaintiffs contend this requirement forces developers to “surrender fundamental property rights” by selling units below market rate, effectively operating as an illegal taking of property to solve a public issue that should be funded by the broad tax base. If successful, this challenge could crack the legal foundations of inclusionary zoning across the Commonwealth, invalidating similar programs in Boston, Somerville, and beyond.
The Legislative Countermove
Simultaneously, the Massachusetts Senate is pulling in the exact opposite direction. The Senate’s housing committee recently advanced a comprehensive “YIMBY” (Yes In My Back Yard) bill designed to spur production. Crucially, the bill includes new language that would allow cities and towns to adopt inclusionary zoning policies by a simple majority vote, lowering the threshold from the traditional two-thirds supermajority.
Senator Brendan Crighton, the committee chair, argues that the current supermajority requirement is an undemocratic barrier to pro-growth zoning changes. By making these policies easier to enact, lawmakers hope to unlock more affordable units in suburbs that have historically resisted development.
The YIMBY Skepticism
However, this legislative push has met with unexpected skepticism from the state’s loudest pro-housing voices. While groups like Abundant Housing Massachusetts support the broader bill’s goals—such as reducing minimum lot sizes and eliminating parking mandates—they are wary of unfettered inclusionary zoning.
Their hesitation is rooted in economics rather than ideology. YIMBY advocates warn that if municipalities set affordability requirements too high without providing offsetting subsidies, projects will simply become financially unviable. As the lawsuit begins a legal process that could take years to resolve, the simultaneous legislative effort to expand these policies highlights a growing friction between the urgent political desire for affordable units and the fragile economic realities of building them.
The impact of these proposals on the Berkshires in unknown, but give one an idea of the challenges associated with enacting zoning changes.
Seasonal Community regulations due on December 31 2025 were not yet released.
News Bulletin: SAVE THE DATE!!!!! The Executive Office of Housing and Livable Communities (EOHLC) plans to host a virtual informational meeting for Western Massachusetts communities on Wednesday, February 4, 2026 at 5:00 pm. Berkshire Regional Planning Commission will follow with the meeting link once we receive it from EOHLC. If you have any specific questions before the meeting, please send them to me or CJ Hoss (choss@berkshireplanning.org). We plan to provide questions to EOHLC in advance of the meeting to allow them to prepare a comprehensive response. This pertains to the Seasonal Communities designation and for which Stockbridge is eligible. Also discussed was BRPC’s 2026 District Local Technical Assistance (DLTA) Program which is open for applications through January 30, 2026. In order to understand the Seasonal Communities designation, the application form explicitly calls out assistance related to Seasonal Communities as an eligible activity for the program. The application can be found here: https://berkshireplanning.org/district-local-technical-assistance-2026/. BRPC will provide additional updates as new information becomes available. In the meantime, please reach out to CJ Hoss (choss@berkshireplanning.org) or Nicole Ogg (nogg@berkshireplanning.org) for more information.
